Transcript

Damien Carrick: Hello, welcome to the Law Report, Damien Carrick with you. We all know that CCTV and DNA are key tools for catching crims, but can they bamboozle juries? If a professor describes someone in a CCTV image as 'ectomorphic' (that's a fancy word for skinny) or 'dolichocephalic' (that's narrow-headed to you and me), is this useful opinion based on expert knowledge or just the White Coat effect?

Well, last week the High Court of Australia handed down two decisions involving the use of scientific evidence in criminal trials. One involved CCTV footage of an armed robbery, the other a DNA sample found at a murder scene. In both cases the High Court quashed the convictions. But it declined to make broader rulings that might impact on similar future scenarios.

Jeremy Gans: I have the worry that although the High Court likes to keep its role narrow, its refusal to go to the bigger picture means that future miscarriages of justice can proceed unchecked or can proceed for a long time before the High Court gets around to resolving the issue.

Damien Carrick: More from Professor Jeremy Gans later.

The first of the two High Court decisions involved Anthony Charles Honeysett. Last week the court quashed his conviction and ordered a new trial. Katherine Biber is an associate professor at UTS a law school. She says this case is one of a string of controversial trials where the prosecution presents an expert who interprets CCTV images. Anthony Charles Honeysett was charged with an armed robbery that took place on 17 September, 2008.

Katherine Biber: Mr Honeysett was accused of a robbery of the Narrabeen Sands Hotel, it's a pub on the northern beaches of Sydney. A number of people were involved in this robbery of the pub, it was held up after hours so there was just a small number of staff cleaning up. And the entire robbery was captured on CCTV. So there was evidence available from the witnesses who were present in the pub at the robbery and there was also evidence available from the CCTV footage which captured different scenes in the pub during the robbery.

The eyewitnesses gave quite conflicting accounts of the descriptions of the offenders, and the one who was alleged to be Honeysett was known as Offender One, and Offender One was wearing clothing covering his entire body, he was also wearing gloves, and he also had something wrapped around his head that could have been either a white T-shirt or a white pillowcase. The only part of Offender One that was visible was a very small strip of skin between his glove and the end of his sleeve.

Damien Carrick: So Offender One goes on trial, and there is, I understand, DNA evidence which is produced against him.

Katherine Biber: Just to explain the other evidence very quickly, Offender One was seen to be using a hammer that had a pink handle. Later on a stolen car was recovered that was alleged to be the one that was used in the robbery, some of the witnesses had seen this particular model of Audi leaving the pub. And in that stolen car was found a pink-handled hammer and a T-shirt, both of which had on them DNA that was consistent with Mr Honeysett. Mr Honeysett gave an explanation for how his DNA could have been on those things, even though he said he was not involved in the robbery. He said he lived in the block in Redfern and there's a kind of sharing economy in that area amongst Aboriginal people who share clothing and their possessions.

Now, the CCTV itself was shown to the jury, but because, as I said, Offender One was completely concealed beneath different kinds of clothing, it wasn't possible for the jury to resolve beyond any reasonable doubt whether Offender One was or was not Mr Honeysett. So there was this other evidence which was brought in which was tendered as what is conversationally known as expert evidence. An expert was called to give his interpretation of the CCTV imagery in order to attempt to assist the jury to find, consistent with the Crown theory, that Offender One in the images was Mr Honeysett.

Damien Carrick: And we are talking about the evidence here of a Professor Henneberg, is that right?

Katherine Biber: Yes, Professor Maciej Henneberg is a professor of anatomy and biological anthropology at the University of Adelaide. He's a very highly regarded anatomist in his field and he has a very, very wide range of anatomical interest in his research portfolio. But one of the things that Professor Henneberg has been doing over the last 10 or so years in the Australian criminal courts is giving expert evidence of his interpretation of what appears in CCTV or other video imagery. And so what he's been doing is some kind of anatomical description but from the two-dimensional medium, the images, rather than the more conventional three-dimensional medium which is what his anatomical practice more typically involves, measuring three-dimensional bodies or forms.

Damien Carrick: And what evidence did he actually give about Offender One or Mr Honeysett?

Katherine Biber: Firstly he described in an anatomical kind of language some of the characteristics that were visible in the imagery. So he described what he called an ectomorphic body type. An ectomorph is just an anatomical term for a person who is skinny. He also gave an anatomical term that describes the shape of the person's head, basically he said it was more of an oval shaped head rather than a round shaped head. He described elements of that person's posture. He said that person was right-handed, and he said that that person had a skin tone that was darker than white. And he said that because he could not find any dissimilarities between those anatomical qualities and Mr Honeysett, that there was therefore a high degree of anatomical similarity between Offender One and Mr Honeysett.

Damien Carrick: So this evidence at the criminal trial of Mr Honeysett, it was deemed to be expert evidence, this comparison of the two sets of images by the world-renowned professor of anatomy?

Katherine Biber: Yes. So the way that this evidence was tendered and ultimately admitted at the trial is as what is called an opinion based on specialised knowledge. The fundamental principle about the admissibility of evidence is that courts only like to admit evidence of facts. There is an exception to that principle though where the opinion about a fact is tendered by a person who has what we call specialised knowledge. If a person has specialised knowledge based on their training, study or experience, and the opinion that they give is wholly or substantially based on that specialised knowledge, then they may satisfy an exception to the rule against admitting opinions in order to prove facts in litigation.

So Professor Henneberg's evidence was tendered as his opinion based on his specialised knowledge. So in order to admit that evidence at trial the court needed to first be satisfied that he holds specialised knowledge based on training, study or experience. Now, in his case that's quite easy to satisfy. He's a professor of anatomy, he has a PhD, he has a long and distinguished career of publications and invitations. But the second requirement for admissibility is that the opinion that he gives in court is wholly or substantially based on that specialised knowledge. And this is where the argument was made about his evidence and this is ultimately what the High Court ruled, was that the evidence that he gave, the opinions that he gave about what he could see in those images, those opinions were not wholly or substantially based on his specialised knowledge. He'd gone beyond what he was really an expert in and claimed to see things in the images that were beyond what his specialisation would have permitted him to see in the images.

Damien Carrick: So the defence team appealed the admissibility of Professor Henneberg's evidence. The Court of Criminal Appeal in New South Wales upheld that admissibility. It went to the High Court. The High Court have just last week said no, it should not have been admissible. And their view was, what, that he has expertise in anatomy, he doesn't have expertise in comparing images? Is that what they found, in a nutshell?

Katherine Biber: In a nutshell, what they found was that what he was doing when he was describing the anatomical features that he said were visible in the images, what he was doing gave…and this is a quote from the High Court, they said, 'Professor Henneberg's evidence gave the unwarranted appearance of science to the prosecution case.' So essentially he was using scientific language to describe things that a layperson could have seen. If it was visible in the image that the offender is a skinny person or has an oval shaped head or is, frankly, a male adult, or has a particular skin tone, those are not specialised things that require expert knowledge. Those are the kinds of things that if they are apparent in an image, a jury should be able to see them in an image.

So the High Court was concerned that by calling a professor of anatomy to described in anatomical language things that are visible to the naked eye of a layperson, they were perhaps creating what some people call the White Coat effect, that because somebody has scientific knowledge and ability, the evidence that comes out of their mouth is somehow of a higher probative value than a layperson's ability to do the interpretation for themselves.

Damien Carrick: Now, Katherine Biber, you are pleased by the decision, but you would have liked the High Court to have gone much further. What would you have liked it to have done?

Katherine Biber: It was an important opportunity, and there are a number of critics who were hoping that the High Court would take a further step, because the case of Honeysett is actually becoming a more and more typical case. There are a series of cases in which Professor Henneberg and others have given very similar kinds of evidence, and on appeal these cases are just distinguished on their facts rather than the courts actually setting down new jurisprudential guidance, particularly because this kind of evidence is coming in under the exception for opinions based on specialised knowledge.

So the hope was that the High Court would give some detailed consideration to what specialised knowledge actually means and what specialised knowledge actually demands, because whilst it might seem a kind of abstract question, a kind of epistemological question—what is knowledge?—specialised knowledge needs to demand something. And until now the courts have been reluctant to say what actually does a witness need to demonstrate that they can do before a court is satisfied that they hold specialised knowledge and that they are applying that knowledge to their evidence.

So particularly in the area of scientific evidence people have been calling for some expectation that the evidence that they give has some qualities of reliability, that the technique that the witness has used has some scientific validity, that there is any error rate that is known and disclosed, that we know something about the proficiency of the operator, that we know something about the skills and qualifications of the people giving the evidence, that perhaps there are some kind of standards applied to the techniques that are being used and the way in which the evidence is being articulated. There are a range of things that the court could have said we now need to expect of specialised knowledge before evidence can be admitted through that exception. And this was an opportunity for the High Court to do that, and in Honeysett they didn't resolve any of those questions.

Damien Carrick: But isn't that debate something which can take place in the court case? So, for instance, in the Honeysett trial there were other expert witnesses who said, look, I think Professor Henneberg's work here is 'pure guesswork and extremely subjective', or another one said 'I'm not aware of any studies into Professor Henneberg's methods'. So wasn't there a debate at that point about the reliability or the usefulness of his evidence?

Katherine Biber: Yes, that's true. And until now the courts have assumed that the techniques of adversarial litigation, the techniques of cross examination are sufficient to expose any problems about the validity or reliability or error rate or other aspects of a scientific technique. I suppose the concerns of a number of critics is that particularly in criminal proceedings there isn't really equality of arms.

The prosecution has the resources of the state available to them, and defendants rely on whatever resources are available to criminal defendants, which in some cases don't match the resources of the state. And it creates a sense of unfairness between prosecutors and defendants if a defendant is actually expected not only to defend the evidence called by the Crown but to defend the entire state of science and the scientific standards and practices that are used in their defence.

Particularly as is evident in the case of Honeysett, there were a number of defence experts called, and it's becoming apparent that the experts the defence is calling don't come from the same field as Professor Henneberg, because Professor Henneberg is one of a very, very small number of operators who are offering this kind of evidence and it gives critics to think that there perhaps isn't even a field of image analysis which enables people to do identification from images.

Some of the defence experts are scientific photographers, experimental psychologists, but there are a range of different techniques that need to be called by defendants in order to challenge some of the evidence that is known as facial or body mapping evidence that is coming in from anatomists. And the concern is that the techniques of adversarial litigation, such as the ability to cross examine a witness or to call evidence to challenge the prosecution evidence, is unfair to criminal defendants. So there was the hope that the High Court, in deciding Honeysett, would prevent the need for that to happen every single trial by saying there are a new and consistent set of standards that need to be applied whenever specialised knowledge is being tendered by an expert.

Damien Carrick: Katherine Biber, have other jurisdictions, other parts of, say, the common law world, adopted the kinds of reliability tests that you are suggesting we should here in Australia?

Katherine Biber: Yes, certainly in other Anglophone jurisdictions there has been a shift towards looking at the validity and reliability of scientific techniques. And so in the United States for instance the National Academy of Sciences has had a considerable review of all of the forensic sciences, and they've decided that apart from nuclear DNA, all of the forensic identification sciences need much more research, funding and analysis before they can be regarded as reliable and valid. The Law Commission of England and Wales has also argued in favour of a reliability standard being imposed wherever specialised knowledge is tendered.

So for the Australian jurisdictions that use the uniform evidence laws to say that reliability is not a part of our law of evidence is to start to create the concern that some of the Australian jurisdictions are now lagging some way behind the other common-law jurisdictions in expecting scientific evidence to demonstrate scientific validity and reliability.